Friday, September 26, 2003

Ban the charitable calls, too

To the federal court opinion from Colorado, holding that the do-not-call list of the FTC was unconstitutional because it does not bar calls soliciting charitable contributions, will Congress make the natural response and say, ok, we'll ban the charitable calls, too? Yet, I wondered about the part of the opinion that suggests there is a hierarchy of protected speech - the district court said the following:

"Despite the value of commercial speech, however, it is afforded lesser protection under the First Amendment than other types of speech, such as speech soliciting donations for political or charitable causes. Central Hudson, 447 U.S. at 562, 100 S. Ct. at 2349; Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632,100 S. Ct. 826, 834 (1980). Charitable solicitation of funds does more than inform private economic decisions because it involves the dissemination of views and the advocacy of political and social causes. Village of Schaumburg, 444 U.S. at 632, 100 S. Ct. at 834. It is, therefore, protected more highly than commercial speech. Commercial speech also receives lesser protection because, to require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with respect to the latter kind of speech. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S. Ct. 2371, 2375 (1995)."

So, if "charitable" speech gets more protection under the First Amendment than does commercial speech, then why is that not a sufficient justification for the do-not-call list to apply to commercial speech but not to charitable speech? On the other hand, it was my understanding that there is no such hierarchy of different kinds of speech that are more protected than others.

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